Today’s ‘Internet Injunctions’ case in the high court (Cartier vs BSkyB) highlights one of the inherent problems with the kind of ‘porn-blocking’ censorship system that the current government has effectively forced ISPs to comply with: when you build a censorship system for one purpose, you can be pretty certain that it will be used for other purposes. As David Allen Green, who tweets as @JackofKent described it today:
I’ve argued this before – it’s question five in my ‘10 Questions about Cameron’s ‘new’ porn-blocking‘, but here it is in action, being argued in court. It was inevitable that it was going to be argued. Though people tend to deny it, ‘function creep’ or ‘mission creep’ is a reality, not a dream of the paranoid tin-foil hat brigade.
It’s not an argument restricted to censorship systems – the same applies to surveillance, and should remind us of the links between the two, and the need to oppose both. Just as advocates of censorship start with child-abuse imagery and then move on through ‘ordinary’ porn to other kinds of ‘offensive’ material, and then to copyright infringement, advocates of surveillance start with catching terrorists and paedophiles, through catching more ‘ordinary’ criminals, to finding people who are ‘offensive’ in some other way, through to those suspected (and it is generally based on suspicion, not proof) of infringing copyright. And from there, who knows where?
The links between surveillance and censorship are strong and multifaceted – though the motivation, in the end, is the same: control over people and restriction of freedom. Surveillance can be used to support censorship – watch everyone to see where they’re going, what they’re watching and reading, who they’re meeting, so that you can shut down their websites, close their meetings, track down the people they’re listening to, and so forth. Censorship can be used to support surveillance – particularly with things like the current ‘opt-out’ internet filters, where if you opt-out of censorship, that automatically makes you suspicious, and a target for surveillance. Anyone using a pseudonym, or trying to be anonymous, is already marked down as suspicious – anyone using TOR or an equivalent, for example.
This is one of the many reasons we should reject both censorship and surveillance. We should understand that the two are linked – and that there are slippery slopes associated with both. And they really are slippery, as today’s case in the High Court should help us to see.
For more details of the case, see David Allen Green’s piece for the Open Rights Group here, and the Open Rights Group press release here.
Parliament is to be recalled on Friday, to discuss UK involvement in air strikes against the so-called ‘Islamic State’ (neither really Islamic nor a state – in the same way that in the past the ‘Holy Roman Empire’ was not ‘holy’ nor ‘Roman’ nor an empire). Unlike the last time parliament voted on military action in Syria (that time against the regime of Assad – who would almost certainly be amongst the beneficiaries of the military action that is now being proposed), it seems pretty certain that both houses of parliament will approve this action. The ‘Islamic State’ (‘IS’) has performed so many atrocities – some of them on British citizens, some televised – that it is hard to see how military action can be resisted. And yet I do still have doubts. Big doubts.
I always doubt war. I’d like to think that we all do. The idea of using military force should be a last resort. People die – and that’s something that we need to take seriously. It’s not a game – though often it seems to be viewed in that way. People have played war games from the days of pushing toy solders about on a big map to playing Call of Duty on their X-Box – but real war isn’t like that. I haven’t experienced war myself, but I’ve spent a lot of time with people who have – from old relatives of mine who fought in the Spanish Civil War to working with kids who lived through the war in former Yugoslavia. War is a hideous, horrible, messy business. The sanitised language used these days – ‘surgical strikes’ is the one that gets me the most – can make it seem as though it’s easy, precise, and controllable. It isn’t. Precisely the opposite.
Learning from history
In this case, there seem to be very particular reasons to have doubts. Our recent experiences should make those doubts inevitable: the invasion of Iraq should be fresh in all our minds. Forgetting for a moment the farce of the WMDs, we went into Iraq to try to remove someone we believed was doing hideous things to his own people – and though we did remove him, we did it in a way that left hundreds of thousands dead, and resulted in a state in chaos. It is hard not to conclude (unless you’re Tony Blair) that it also played a very significant part in setting in place the conditions that brought about the emergence of IS. Our intervention cannot, except in the eyes of the blindest of optimists, be seen as having been a success. We created chaos, fostered resentment, and killed countless numbers of people. Can we be sure that what we are contemplating now won’t have similar results? IS emerged from the ashes of our earlier work: what will emerge from the ashes of this plan? It may be hard to imagine, but something still worse is possible.
Have we learned the lessons of last time? Or even from last year – when we were looking at action on the opposite side of the same conflict, so far as Syria is concerned? Listening to people like Tony Blair and his advisors, like Jack Straw – or, on the other side, the likes of Liam Fox – it seems as though we’ve learned almost nothing. It’s a bit like watching a bee buzzing against a window, again and again and again. This time it’ll be OK. No, this time. This time!!
Who wants this war?
We really should be asking this question. There are many answers – and they should at least make us pause for thought. One group who seem to be pretty keen on the war are IS themselves. They’ve been goading the West again and again. Challenging us to take action. Now it’s possible that they’re doing so expecting us to refuse, so they can portray us as cowards – but is that really likely given the past record? It seems far more likely that they want us to attack. They want us to demonstrate that we are as they suggest we are – we’re the Great Satan, out to destroy Islam. The more we attack, the more their case is proven – and the more they can recruit people to join them. Yes, their fighters will die, but they’ll die for the cause, and the cause itself will grow.
There are also people here in the West who clearly want this war – and for many of them the reasons should raise even more doubts. Tony Blair himself is one – whether to try to vindicate his original decision to join George W Bush in invading Iraq in the first place, or because he genuinely believes that this is the only way, he’s scarcely the person that we should be listening to in making a decision about military action. Liam Fox is another – a man with very close connections to the arms industry. Indeed, there are many amongst those calling for war who are likely to end up making money out of it, just as so much was made in both the war and the ‘reconstruction’ efforts in Iraq after the invasion back in 2003.
There are others who want the war for much more genuine reasons – from the Kurds themselves to others with close connection to the situation on the ground. They should be listened to – but so should those who doubt.
‘They threaten our way of life’
The portrayal of IS as the worst demons imaginable is a convincing one. Some of the stories coming out of Iraq and Syria are truly harrowing, and there’s little doubt that they commit atrocities on a nightmarish scale – but we should be careful about claims made about them even so. The idea that a group, or an ideology is ‘threatening our way of life’ is one that has been used before. Saddam Hussein was compared to Hitler. Al Qaeda portrayed as even worse. Assad, just a year ago, was described in similar ways. Going further back, the menace of Communism was seen the same way – and used as a justification for war all over the world. That’s not to say that any of these things are not true: in many ways they are. That, however, is not necessarily a justification for war – particularly if the war may not really have the effect of destroying them. The idea of a hydra, where if one head is chopped off two more grow in its place is one that should be familiar to all. Attacking IS may end up quite similar.
‘But what do you suggest?’
This is a question that I’ve been asked pretty much every time I’ve expressed doubts about military action against IS – and I don’t really have an answer except to say that right now, what is being suggested seems likely to me to do more harm than good. If that’s the case, then, painful as it may seem, right now the best thing to do might be nothing at all. To think. To try to find other ways. Arming the Kurds, for example, might be a far better way forward than air strikes or other direct military involvement. But, and I think this is crucial, not having an active alternative to suggest should not mean that we can’t express doubts about what is being proposed. Given the leaders that we have, we cannot – we must not – give them free rein to do whatever they want. We can’t trust them to run our own country – why could or should we trust them to wage war, to risk other people’s lives?
Being serious about peace and human rights
Even if this time war is appropriate – and I’m far from sure that it isn’t – what bothers me the most is that we don’t seem to be serious about peace, or all the things that are connected with peace. We have a government that is seriously considering withdrawing from the European Convention on Human Rights, and that seems to have little concern for or respect for the rule of law – Chris Grayling’s recent court defeat over legal aid ‘reform’ is just one example. We continue to supply arms, surveillance equipment and so forth to oppressive regimes all around the world – including regimes that behead people, oppress women and religious minorities and many of precisely those things that we see as being so evil in IS. Our governments overlook and even support the actions of the Israeli government in Gaza. While we do all these things, it’s very hard for us to be seen as anything but hypocritical in our actions – and it’s easy for people like IS to portray us as the enemies of the good. The starting point for creating peace and fostering human rights around the world is to support it at home. Yes, I know I’m being idealistic, unrealistic and living in Cloud-cuckoo-land to ask this, but sometimes it’s good to be idealistic.
There’s nothing wrong with doubt.
…and sometimes it’s good to have doubt. Sometimes it’s right to have doubt. I want to be quite clear about this – I may well be entirely wrong about this action. It may be that this is the time that military action is needed. I’m not a pacifist: my family fought against the Nazis, and in the Spanish Civil War. Sometimes military action, sometimes war, is needed. And, what’s more, delaying action can be critical. Leaving off action could have disastrous consequences. I know that. And what’s more, I know that my doubts will almost certainly not be listened to. That doesn’t stop me having them. I hope more people do have them – because what we should really worry about is people who are certain. That kind of certainty makes me shudder.
One of my favourite sayings is ‘who sups with the devil needs a long spoon.’ I love the imagery – and the meaning too. It seems as though we often need to sup with one devil or another – and we need to be constantly on our guard, and to make sure our spoons are long enough or we’ll find ourselves sucked into the devil’s grasp.
The times when the saying is relevant to politics seem almost endless – the poor old Lib Dems didn’t have nearly a long enough spoon when they went into coalition with the Tories, and they’ve been sucked almost dry. It’s not likely there will be much of them left after the 2015 election – and even what is left will be horribly damaged. They’re probably the best example of all – and show all the different stages of the ‘long spoon question’.
There are three parts to it. Firstly you need to recognise the devil when you see him. Secondly, once you’ve recognised him, you have to decide whether you really need to sup with him. Thirdly, if you do need to sup with him, you need to equip yourself with a long enough spoon. With the Lib Dems, I think they failed on all three, at least to a degree. David Cameron’s smarmy smile seemed to convince the Lib Dems – well, at least to convince Nick Clegg – that he wasn’t the devil. At any rate, he wasn’t that bad a devil. Secondly, even if they had some doubts about the Tories’ devilish nature, they decided that they’d better sup with them anyway, ‘for the good of the country’ – or perhaps for the attraction of the ministerial cars and the seats around the cabinet table. The idea of not supping with them didn’t seem to really occur to them. Thirdly, they didn’t equip themselves with nearly long enough spoons – indeed, their spoons were very short indeed, and they found themselves sucked into the Tory plans in pretty much every way. Breaking their pledge on tuition fees was just the tip of the iceberg – from secret courts and surveillance to the bedroom tax and the most illiberal justice and immigration policies in a generation, this is, in terms of liberalism, an almost definitively devilish government.
Labour has been watching the Lib Dems over the last four years – or at least should have been – but over the Scottish Independence Referendum they seem to have found themselves falling into exactly the same trap. Not on such a big scale, but ever bit as much of a trap… and with even less of an excuse.
There’s nothing like a ‘vow’ that should ring alarm bells for politicians. Nick Clegg’s experience with the Tuition Fees pledge should have been etched into the brains of every politician in the country – and yet they fell for it again, in a moment of desperation as the ‘yes’ campaign had their fleeting moment of leading in the opinion polls. And yet Cameron, Clegg and Miliband’s ‘vow’ to Scotland was worse than that: it was a trap, a devilish trap, into which Miliband fell face first. It’s another classical ‘sup with the devil’ situation – and again, Labour failed on all three levels.
First of all, they should have recognised the devil. If anyone in the Labour Party doesn’t see the devil in the Tories, they should be ashamed of themselves – and yet I suspect that some of them don’t. The way that the Independence Referendum campaign went, it seemed at times that Labour felt more affinity to the Tories than to the SNP – or indeed to the people of Scotland. They seemed to assume that Salmond was the devil – and hence that Cameron, as the enemy of their enemy, was their friend, and hence not in the slightest devilish.
Secondly, they decided that they should sup with Cameron – that Miliband should join Cameron (and the almost invisible and irrelevant Clegg) in the campaign to save the union. Supping with the devil indeed, but seemingly for a good cause. But did they need to? Could they not have campaigned to save the union without working with Cameron? Without a joint ‘vow’? Without agreeing in some collective way to cancel Prime Minister’s Questions at the last moment? It looked, from the outside, like not just supping with the devil but spooning with him.
Thirdly, their spoon wasn’t nearly long enough – they didn’t see the trap that the devil had laid. The way that Cameron joined the ‘vow’ to the Scots to the ‘English Votes for English Laws’ suggestion less than a day after the referendum result should have been predictable. Perhaps not in detail – but that the cooperation was a trap, and that the Tories would find a way to use Labour’s cooperation against them should have been entirely predictable. The devil will be the devil. And even if Cameron now doesn’t ‘officially’ join the two questions together, they’re connected in people’s minds, and Labour looks weak, looks as though it’s ‘anti-English’, as though it’s ‘unfair’ – and that it has betrayed the Scots.
This, though the devolution and localisations issues for the English and the Scots are very, very different – and sorting out a solution for England, even if there is a problem to ‘solve’ is far more complex than granting powers to the Scottish parliament. English nationalism has become part of the story, and it is a part that the press will love, the Sainted Nigel Farage will play for all it’s worth. It’s a trap, and one that Labour should have avoided.
They didn’t recognise it. They didn’t know the devil even as he invited them to sup. And their spoon wasn’t nearly long enough. It rarely is.
When I first studied human rights, my then supervisor, Professor Conor Gearty pointed me to an article by Michael Mandel, called “A Brief History of the New Constitutionalism, or “How we changed everything so that everything would remain the same””. The article, to a great extent about the effective conservatism of the US Supreme Court over history, starts by referring to the novel The Leopard, by Tomasi di Lampedusa. This is from Mandel’s piece:
“The novel is about a noble Sicilian family at the time of the unification of Italy in the mid-nineteenth century. Italian unification was mainly a matter of the northern Savoy monarchy of Piemonte conquering the peninsula and vanquishing the various other monarchs, princes, etc., including the Bourbon rulers of Sicily and Naples. But there were other elements about and stirring up trouble, anti-monarchist and even socialist elements. In a scene early in the novel, the Sicilian Prince of Salina, the main character, is shocked to learn that his favourite nephew, Tancredi Falconeri, is off to join the invading northerners. He remonstrates with the boy:
You’re crazy, my son. To go and put yourself with those people … a Falconeri must be with us, for the King.
To which the nephew answers:
For the King, certainly, but which King? If we’re not there with them, that bunch is going to make a republic on us. If we want everything to remain the same, then everything is going to have to change. Have I explained myself?”
The point is pretty direct. When people with power see that power threatened, and they see that people without power are demanding change, then they have to find a way to bring about change – satisfying the demand for change – whilst ensuring that this change actually maintains their power.
We’re in the same position now after the independence referendum in Scotland. Everyone – all the political leaders in particular – are acknowledging the need for change. Many are suggesting that what we need is constitutional change in some form or other – regionalism, devolution, devo-max and so forth. All very laudable – but we need to be very careful or we’ll find that the same happens again, and we change everything so that everything remains the same. We’ll have some nice new political structures, but the power will effectively remain in the hands of the same people, we’ll have the same inequalities, the same social injustices, the same blame-games and the same suffering. We’ll spend our energy on what are actually mere window dressing, without dealing with any of the substance.
It’s the substance that needs to be changed. And it’s the substance that’s least likely to change.
The picture above is of Burt Lancaster, in the film version of The Leopard. A great film!
For those that are interested and have access to academic journals, the Mandel piece is in the Israel Law Review from 1998: 32 Isr. L. Rev. 250 1998
I read with interest Professor Luciano Floridi’s report from the first two legs of what the Guardian described as ‘Google’s privacy ethics tour of Europe’. Floridi is Professor of Philosophy and Ethics of Information at the Oxford Internet Institute, and one of the experts appointed by Google to its ‘Advisory Council’ on the right to be forgotten.
As would be expected from such an expert, it is a well crafted report and explains very well some of the key ethical questions being addressed through this public consultation. As Floridi puts it:
“The two words most frequently used by all participants in the meetings were “complex” and “balance”, and they describe the situation well. The debate is complex because there are many elements interacting with each other.
The actual ruling, with its pro and contra, including its inconsistency with the advocate-general’s opinion; the role of search engines as intermediaries or data controllers; the difference between availability and accessibility of information online; the so-called rights (to be forgotten, to information), the real rights behind them (privacy and freedom of expression), and the ways in which they are interpreted on the two sides of the Atlantic; the concepts of relevance and of public interest, both very slippery; the procedural uncertainty about who should decide which links are rightfully removed and who should be informed about it.”
There is one element, however, conspicuous by its absence from Floridi’s analysis: a consideration of the power of Google. That power is considerable, and wielded in many different ways. Indeed, it could be said that the power of Google is at the heart of the whole debate over the right to be forgotten, and without taking it properly into account it will be impossible to come to sensible, practical and effective conclusions over how to deal with the right to be forgotten.
Power over what is found – and not found
The reason behind the Google Spain ruling, to start with, was connected with the power that Google wields: ‘Googling’ someone is probably the most important way to find out information about a person. The Spanish man about whom the ruling was concerned felt that when he was Googled the information was misleading and unfair. Google is at the heart of things: how they set their algorithms, how they index the web, what they include and exclude, what they rate highly – and what they rate as insignificant – matters in ways that are often hugely underestimated. And yet, if you read a lot of commentary – even the expert commentary of Professor Floridi – it seems as though Google are a mere conduit, their algorithm organic and their results generated purely in the interests of freedom of expression. If it’s interesting and relevant, those algorithms will find it for you. Google, in this view, are a purely neutral organisation, providing a service to the planet.
That’s a deeply naive assumption. Google is a business – and like all businesses, its bottom line is the bottom line. Google will do what is best for Google as a business. That may often turn out to be what serves freedom of expression best – if we can’t find what we need to find by using Google, we’ll find another way – but sometimes it won’t be. Google takes down masses of links on the basis of copyright claims – because its interests are best served by complying with the law of copyright and by keeping cordial relations with the rights-holders. That’s an infringement of freedom of expression – but in the eyes of the law and the eyes of Google, an acceptable one. Google doesn’t link to child abuse images – and quite rightly so – but that’s also an infringement of freedom of expression. Google complies with local laws and other considerations as and when Google finds it appropriate to do so – and there’s absolutely nothing wrong with that approach. Indeed, it’s an entirely appropriate approach – but it means that casting Google as the great champion of freedom of expression is only telling part of the story.
Power to set the agenda
The second aspect of power that needs to be taken into account is Google’s power to control the process and indeed to set the agenda. This whole roadshow was set up by Google – the advisory council was set up by Google, where they visit and when, who is called to give evidence, what the agenda of their meetings are and so forth is all, directly or indirectly controlled by Google. Again, there’s nothing wrong with this, and in some ways it’s entirely appropriate, but it does mean that it should be viewed in that context. This isn’t some neutral, independent body making an academic analysis of the ethics of the right to be forgotten – it’s a Google appointed body, somewhat akin to a board of trustees, taking soundings on Google’s terms. They wouldn’t have been appointed if they weren’t either predisposed to be on Google’s side, or at least seen to be malleable. It also reflects an apparent tactic that Google has employed in the internet governance and regulation space more generally. By giving individuals with high personal reputation positions of importance, flying them on private jets, and generally treating them like royalty, Google creates powerful external allies. Google’s eight experts are already acting in some ways as though they were more expert than the DPAs and other European organs: it gives Google a chance to blend its choices between the best of a set of alternatives. The DPAs do, at least, appear to have noticed this.
Google seems to have been setting the agenda over the reporting of the right to be forgotten since the day it came out – many (including myself) have wondered whether Google has been deliberately overreacting to the ruling, deleting links to stories when they really didn’t have to, to try to make the ruling look ridiculous. Those stories began very shortly after the ruling, but they continue to this day – the most recent being the story that links to a positive story about an artist being removed seemingly at the artist’s desire. It’s a deeply unconvincing story, and generally couched in terms that misunderstand the ruling. Suggestions that Google was ‘forced’ to remove the link are quite wrong: a request is made, and then Google can decide to delete or not to delete – deletions being if the information is old or irrelevant – and if they choose not to, the requester can either take legal action or ask the data protection authority to adjudicated. Even in the Guardian, which really should know better, it was suggested that “Google was required to enact the court’s decision”. No. Google was not required to do so. They could, and on the face of it they should, have refused to do so. If they were really the guardians of freedom of expression, they would have – but there are wheels within wheels here, and making the ruling look ridiculous seems, again, at least on the face of it, to matter more to them.
Power in other ways
Google’s immense resources mean that it can wield its power in many more ways. Lobbying, both open and hidden, is a big deal – the amount of effort put into shaping the reform of the data protection regime so it suits Google better has been colossal. Current and ex-Googlers are now in the House of Lords (Joanna Shields, appointed by David Cameron in August, used to run Google’s Europe division) and in the White House (Megan Smith, Google VP for Development is Obama’s new Chief Technology Officer and senior technology advisor, appointed earlier this month). Google provides funding to think tanks, and to academic organisations – indeed, they’re one of the biggest funders in these areas. Though this funding is given without strings attached, it is hard not to feel that there is at least some influence on the subjects that are researched, and the terms on which they are researched. No-one bites the hand that feeds them without at least thinking about it. Google has a critical role to play in how technology functions, how businesses function – and in how the media functions. The media in particular sometimes seems far less critical of Google than it might be – except in terms of its taxation policies.
None of this should detract from the way that Google does provide great products – and that things like its search engine do provide a huge amount of help for freedom of expression and so forth. That, however, should not prevent us from seeing the impact of the power that it wields – and taking that power into account when looking at things like privacy and freedom of expression. When trying, as Professor Floridi says, to find the right balance, with all those complex factors to deal with, that power must be taken into account. If it isn’t, that balance will never be found.
The video below is the slideshow of my presentation this morning at the Society of Legal Scholars conference in Nottingham – and what follows it are some brief notes to support it. Some of this is speculative and some of it is contentious – particularly in relation to the relative importance of corporate and governmental surveillance – and this is an early stage of this research, though it builds on the work in my book, Internet Privacy Rights. I should also note that this is a development of the paper I gave at BILETA earlier this year: ‘who killed privacy?’
The Resurrection of Privacy?
In 1999, Scott McNealy, then CEO of Sun Microsystems, famously said:
“You have zero privacy anyway. Get over it.”
Events and developments since 1999 have hardly improved the prospects for privacy: the growth of social networking, technological developments like smartphones, geo-location, business ideas such as behavioural tracking and, most recently, the revelations from Edward Snowden about the near universal surveillance systems of the NSA, GCHQ and others. If privacy was in trouble in 1999, the argument that it is at least close to death in 2014 is much stronger.
That brings two questions:
If privacy is dead, who killed it? Did we kill it ourselves? Is it the activities of government agencies like the NSA and GCHQ, or of businesses like Google and Facebook?
If if privacy is in fact dead, is there a possible route towards its resurrection?
Suspect 1: us!
On the face of it, it might appear as though we ourselves have simply given up on privacy. We’ve killed it ourselves by embracing all the privacy-invasive technology that’s offered to us, by failing even to read privacy policies, by allowing the intelligence services to do whatever they want, with barely a murmur of protest. More than a billion of us have joined Facebook, for example, a service based at least in some ways on giving up on privacy, sharing our most intimate information.
That, however, is not the whole story. In many ways it appears that what we have done has been through a lack of awareness rather than by deliberate decisions. The extent to which people understand how systems like Facebook work is hard to gauge – but the surprise that people show when bad things happen suggests that there isn’t a great deal of awareness. It also appears that people are becoming more aware – and as they become more aware, they’re making more privacy-based decisions, taking control of their privacy settings and so forth.
Further, when we’re given the chance to see how intelligence agencies work, we don’t seem to be happy about it – though less, it has to be acknowledged, in the UK than in many other countries. Even so, when the Communications Data Bill was put under full scrutiny, it was rejected – in part because of the public reaction. Further, studies show that people don’t like behavioural advertising – and dislike it more when they learn more about how it works.
All this suggests that we aren’t really the key to the death of privacy: we’re more like unwitting accomplices.
Suspect 2: the NSA and GCHQ
The revelations of Edward Snowden about the surveillance activities sent shockwaves through the internet. Many people had already believed that the NSA, GCHQ and other agencies performed surveillance on the internet – Snowden’s revelations seemed to prove it, and to suggest that the level of surveillance was greater even than that feared by the more extreme of conspiracy theorists. Not just had they been gathering telephony and internet data and building (in the US) massive data centres, but they’d been accessing the servers of the big commercial internet providers, tapping into undersea cables, intercepting traffic between server sites and undermining encryption systems – and much more. The level of privacy invasion is extreme.
However, until Edward Snowden revealed all of this, the agencies were working largely in secret – and while this still constitutes a major invasion of privacy, the impact on people’s behaviour is much smaller. If we don’t know we’re being watched, our actions aren’t chilled – and our beliefs about privacy are not changed. Moreover, the kind of harms done to people by surveillance by the NSA and GCHQ are indirect, at least for most people. Finally, and most importantly, if it were not for the commercial operators’ surveillance, the NSA and GCHQ would have far less to ‘feed’ on.
All this is not to dismiss the role of the intelligence services or indeed the impact of their surveillance activities – they should be resisted with the utmost vigour – but in terms of the death of privacy, they can be seen more as opportunist accomplices, rather than instigators.
Suspect 3: businesses like Facebook and Google
The role of the commercial operators on the internet, on the other hand, is both deeper and more significant either than is often believed or than the role of governments and government agencies on their own. The commercial entities have contributed to the decline of privacy in three kinds of ways:
Systematic – commercial entities have undermined privacy both in technological and business model senses, developing technologies to invade privacy and business models that depend on systematic and essentially covert gathering of personal data. Businesses have also lobbied strongly to reduce the effectiveness of legal privacy protection. In Europe they have done their best to undermine and weaken data protection – including the on-going reform process. They continue to do so, for example in relation to the right to be forgotten. In the US, they have contributed to the effective scuppering of the Do Not Track initiative.
Cooperative – businesses have been working with governments, sometimes willingly, sometimes unwillingly, sometimes knowingly and sometimes unknowingly. The extent of this cooperation and the extent to which is has been willing is unclear – though recent statements from the NSA have suggested that they did know about it and did cooperate willingly. Further, they kept this cooperation secret – until it was revealed by the Snowden leaks.
Normative – businesses have been attempting to undermine the idea that privacy is something to value and something of importance. Mark Zuckerberg’s suggestion that ‘privacy is no longer a social norm’ is reflected not just words but actions, encouraging people to ‘share’ information of all kinds rather than consider the privacy impact. Further, they continue to develop technologies that invade privacy inherently – from geo-technology to wearable health monitoring and things like Google Glass.
All this combines to make the role of the businesses look most significant – if anyone is guilty of killing privacy, it is Facebook and Google rather than the NSA and GCHQ. Moreover, the harms to most people possible from corporate surveillance are both tangible and more likely than harms from the NSA and GCHQ: impact on things like insurance, credit ratings, employability, relationships and so forth are not just theoretical.
As Bruce Schneier put it:
“The NSA didn’t wake up and say, ‘Let’s just spy on everybody.’ They looked up and said, ‘Wow, corporations are spying on everybody. Let’s get ourselves a copy.’”
And as Timothy Garton Ash said when considering the Stasi:
“…the Minister for State Security observed that the results achieved by his ministry ‘would be unthinkable without the energetic help and support of the citizens of our country’. ‘For once,’ I comment, ‘what the Minister says is true.’”
Where the Stasi needs the citizen informers, the new surveillance programmes need the ISPs and the internet giants – the Googles, Facebooks, Microsofts, Yahoo!s, Apples and so forth. That is what makes their role in the reverse so important.
The resurrection of privacy
In the post-Snowden environment, at least on the surface, businesses have started to take a more ‘pro-privacy’ stance. Whether that meaningful, or they are just paying lip service to it, has yet to be seen. Their role, however, is crucial.
Reversing the three roles noted above – systematic, cooperative and normative – could produce a positive impact for privacy, effectively being a part of the ‘resurrection’ of privacy:
Systematic – businesses could play a part by building more robust technology and developing more privacy-friendly business models
Cooperative – and Resistant. Businesses could cooperate more with civil society and academia in working towards privacy – and could do more to resist being co-opted by governments, not just being more transparent in their dealings with governments but acting as a barrier and protection for their users in their dealings with governments.
Normative – businesses could play a part in changing the message so that it becomes clearer that privacy is a social norm.
At the moment it seems unlikely that businesses will do very much of this – but there are a few signs that are positive. Real names policies have been relaxed on Google +, and even Facebook has shown some moves in that direction. All the big companies are doing more to secure their systems – encryption is more common, both in the infrastructure and in user systems. Google does at least seem to be making some attempt to cooperate with the right to be forgotten – though whether these attempts are being done in good faith has yet to be seen.
It will probably take a miracle – resurrections generally do – but miracles do sometimes happen.
The news of another Royal Pregnancy – the Duchess of Cambridge is expecting a second child – has as usual provoked a lot of media attention. To say the least. Lots of cooing, lots of cute pictures (like this one of the last little prince to be born), a fair amount of cynicism about the timing of the announcement (in relation to the Scottish Independence referendum in particular) and so on. Flags will be waved, bells will be rung, tears will be shed – but when it comes down to it, will anyone ask the question that comes up so often in other circumstances: ‘won’t anyone think of the children?’ There are many, many reasons to object to the monarchy – but one rarely mentioned is that it’s inherently cruel to the children. Indeed, it might be argued that it breaches their human rights.
The institution of the monarchy brings into play a whole plethora of human rights. Looking at the European Convention on Human Rights (the ECHR), and glossing quickly over Article 4, which prohibits slavery and forced labour (the application of which I will leave to your own imagination), we can move on to Article 8, which covers the right to a private life.
Article 8: Right to respect for private and family life
“Everyone has the right to respect for his private and family life, his home and his correspondence.”
How much privacy does any Royal Prince or Princess get? As a child, their every move is watched – the huge excitement over Prince George’s first steps was just a start of a lifetime of being snooped on, stared at, scrutinised and analysed in every detail. Of course the Prince or Princess will have protection, and the vast wealth of the Royal Family and indeed the powers of the government will be brought into play, but even so, the level of privacy is minimal. What kind of an institution puts that kind of pressure on a child pretty much from the moment it’s conceived – and certainly from the moment the bump is noticed.
Article 9 – freedom of conscience and religion
“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.”
What freedom does a Royal Prince or Princess have? Their religion is predetermined – after all, they might grow up to be Defender of the Faith. We often look down on religious fanatics who force their children to follow in their footsteps – but Royal Babies are every bit as restricted. No chance to change – even if it’s legally possible, the pressure not to change is so huge as to be almost insurmountable. It could bring about a constitutional crisis.
Article 10 – freedom of expression
“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
Almost none of that for a Prince or Princess. One word out of place and the media will jump on them from a great height. Prince Charles has tried a bit, and been viciously attacked (yes, sometimes even by me) for doing so – but even he keeps his pronouncements to a pretty narrow range of topics. The expectation is clear – don’t say anything wrong. All statements in writing care carefully edited and vetted. Nothing political. Nothing that might be misconstrued. No real freedom at all….
Article 11 – freedom of association and assembly
“Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”
How can a Prince or Princess exercise freedom of assembly or association? They’re watched and monitored by the Royal Household, by the paparazzi, by a huge number of others. They can’t meet with who they want, when they want, or associate with who they want. Imagine a trade union for Princes and Princesses….
And the rest…
There’s Article 12, covering marriage, and article 14 covering prohibition from discrimination, but even forgetting them we’re still left with the institution of the monarchy being deeply in breach of the human rights of Royal Babies.
There’s only one solution. The abolition of the monarchy. We must do it, for the sake of the children.
Something has struck me about a whole range of different recent stories, covering many of the different things that I’m interested in: the tendency for the victims to be blamed. I’ve seen it in tech stories, in legal stories, and above all in political stories. It’s often implicit rather than explicit, and often it seems as though the people doing it don’t even realise that they’re doing it – I’ve been attacked for even suggesting it on some occasions – but it has deeply negative consequences, some of which we don’t even notice.
Stupid celebrities?
When Jennifer Lawrence’s naked photos were hacked and leaked onto the Internet, along with those of a number of other celebrities, there were many reactions, some good, some bad. Two, however, had close connections to victim-blaming. The first was the idea that anyone who takes naked pictures of themselves, or allows those pictures to be taken, only has themself to blame if those pictures are leaked. The second was that anyone who puts unencrypted information onto any cloud-based server only has themself to blame if their data is stolen. In both cases the victim-blaming is pretty direct. It’s your fault for having the photos, and your fault you didn’t upload them securely enough. Serves you right.
‘Sluttish’ girls?
A little earlier was the story about inventors developing ‘rape prevention nail varnish‘, so that girls and women can dip their fingers into drinks to see if their drinks have been spiked with ‘date rape drugs’. For many people this just sounded like a good idea – a piece of innovative technology, another tool in the armoury of ‘sensible’ girls and women. For me (and others) it wasn’t nearly so clear: it rang alarm bells of implicit victim blaming.
The victim-blaming here is much less direct – but it works at a number of levels. Firstly, it’s putting the emphasis on what the victim could do to prevent the crime – and hence, at least in part, holding them responsible for that crime. Secondly, by adding to the armoury of tools for ‘sensible’ girls and women it could be used to suggest that any girl or woman who doesn’t use it is not being ‘sensible’, and hence is in some way contributing to their own downfall. It’s not such a huge step from that to the idea that girls and women who don’t do everything possible are in some way ‘asking for it’. They’re sluts. They deserve what they get – and don’t deserve our respect and support when they get it. It’s an attitude that pervades our media in a hideous way – the front pages of the tabloids over the summer, showing ‘scandalous’ behaviour by British youngsters (mostly girls) in places like Magaluf are just the tip of the iceberg. From most accounts that’s the kind of attitude that contributed to at least some of the failures of the authorities to deal with the hideous evens in Rotherham. They weren’t the sort of ‘deserving’ victims that the authorities should be putting all their efforts into protecting.
‘Work-shy scroungers’?
Perhaps the most common example of victim-blaming of them all is with the current attitude to people on benefits in this country – the regular suggestion, sometimes direct and sometimes indirect, that people who are poor, people who are on benefits, are essentially responsible for their own fates. The latest manifestation of this is Esther McVey’s newly announced psychological ‘attitude tests’ for unemployed people, to see whether they’re ‘resistant’ to work. This is pretty direct: the suggestion is that the reason for people’s unemployment is their attitude to work. If only they had a better attitude, they wouldn’t be unemployed.
Of course this isn’t a rare attitude in relation to benefits – indeed, it might well be the most common. The ‘striver/scrounger’ agenda has been pushed very strongly by almost all the political parties in the UK for the last few years, with almost no alternative presented let alone supported. It stretched to almost all areas: poor people are poor, according to this analysis, because they’re ‘work-shy’, Their kids are hungry because they’re not good enough at managing their budgets, or because they waste their money on flat screen TVs, junk food and binge drinking (which also makes their girls ‘sluttish’ of course). Their health is poor because of their bad life-style choices. Those who are disabled brought it upon themselves – or they’re lying about their disability to start with, because they’re work-shy and are looking for excuses. For all these reasons, they’re to blame, and they don’t deserve anything. It’s their own fault.
Being sensible – and taking precautions
In each of these cases – and in many others – it all looks very ‘sensible’. Of course we should all use more secure online services. Of course we should understand and use encryption. ‘Of course’ we should think about whether it’s a good idea to take a naked picture of ourselves. Of course tools like ‘rape prevention nail varnish’ are helpful. ‘Of course’ it would be helpful to unemployed people to see if they have psychological issues that make it harder for them to find jobs – but we should also understand the messages here, and think a bit more about what those messages mean.
It’s a very short step from saying ‘please take precautions’ to saying ‘those people who don’t take all precautions necessary only have themselves to blame’. Indeed, the second is often the unspoken part of the first. From that, it’s a small step to saying that anyone who becomes a victim must have themselves to blame. Only stupid people have their photos leaked. Only sluttish girls get raped. Only work-shy people are ever unemployed. The more we emphasise the precautions, the easier it is to fall into this trap – and trap it is, because it’s completely false. Anyone can have their system hacked, their privacy invaded, their intimate information accessed. Anyone can get raped. Anyone can lose their job. It’s not their fault – but it’s all too easy for people to assume that it is. It’s all too easy for the people themselves to believe that it is their own fault.
Letting the real culprits off the hook
…and that has many more consequences. If it’s people’s own fault that things happen to them, then the real culprits get a free pass. The hackers who work so hard to break into private data to find people’s pictures. The people who spread those humiliating and damaging photos around the internet – and the people who seek them out and view them. The men putting the rape drugs into the women’s drinks – and then rape them. The bankers who crashed the economy – and the unscrupulous employers who pay peanuts and sack people at a moment’s notice. All the people who are really responsible – and changing whose behaviour would really make a difference – are given what amounts to a free ride. They may even be encouraged to do more – if those stupid celebrities do those stupid things, we’re doing a public service by exposing them. They deserve it.
…but they really don’t. More than that, who are we to judge what kind of photos people take of themselves, what kind of clothes they wear, what kind of places they go to to enjoy themselves? Jennifer Lawrence should feel free to take whatever photos she likes – and certainly shouldn’t be expected to learn to use what really are hideously user-unfriendly encryption systems. I have huge problems getting them to work myself! Women should feel free to go out and enjoy themselves without feeling that if they don’t behave perfectly, test every drink they’re offered, wear only the most modest clothing etc, then they’re fair game for any sexual predator. People should be able to expect employers to behave responsibly – and to pay a decent wage.
Until we stop putting the blame on the victims, things aren’t going to get better. Indeed, they’re likely to get worse. It’s a vicious circle – and we need to break it.
A couple of privacy stories have been making big news over the last few days. The first is the ‘celebrity photo’ saga – naked photos of Jennifer Lawrence and others have been ‘leaked’ onto the net. The second is the revelation that the Metropolitan Police obtained the telephone records of Tom Newton Dunn, the political editor of the Sun, in connection with the ‘Plebgate’ saga. Between them, the two stories highlight some of the ways in which privacy matters – and at the same time some of the misunderstandings, some of the hypocrisy, and some of the complexity of privacy.
Celebrities and privacy
The relationship between celebrities and privacy is a complex one. At one level – the level usually argued by the press (including the Sun) – celebrities have less of a right to privacy than the rest of us. After all, they put themselves in the public eye. They open their doors to the likes of Hello magazine – and they make millions from us, from our attention, so doesn’t that mean they have to sacrifice a bit of their privacy to us? The put themselves in the public eye – doesn’t that mean their lives are ‘public’, and drawing attention to them is in the ‘public interest’? This brings into play the classic question of what the difference is between what ‘interests the public’ and what is ‘in the public interest’. They’re certainly not identical – but there is a degree of fuzziness at times.
At another level – the level argued by the celebrities themselves – celebrities need more protection, and if not a stronger right of privacy then a stronger way to enforce that right than the rest of us. After all, celebrities are more likely to have their private lives intruded upon by the press. Paparazzi will point their long lenses into celebrity houses, pursue celebrities down the street, rifle through celebrities’ dustbins, much more than they will for the rest of us. A naked picture of Jennifer Lawrence will get a lot more clicks on the net than a naked picture of a ‘non-celebrity’. The phone hacking saga (of which more later) is just one example – and it’s no coincidence that many of those at the forefront of the campaign to implement the Leveson report are celebrities such as Hugh Grant and Steve Coogan.
There’s strength in both perspectives – and as both are regularly argued by people who are both articulate and very ‘media-savvy’ it is often hard to navigate between them. The courts try – but all too often, whatever they decide is damned by one side or the other.
The Press and Privacy
The Sun are justifiably angry about the revelation that their political editor’s phone records have been accessed by the Metropolitan Police – not least because the story being investigated actually concerned the activities of the police. There are conflicts of interest all over the place here – but also a much bigger point.
For the press to function well, it needs to have privacy. That is, it needs to be possible for the press to keep its sources secret, to protect those people who reveal the key information. If they can’t protect their sources, there’s a very direct chilling effect – people who might come forward with information will be afraid to do so, so that information will never be uncovered, and all kinds of stories that are very much in the public interest will never see the light of day. Members of the press need to have confidentiality – so that they are able to do their job, a critical job in holding the powerful to account. That means the police and the politicians for a start.
Hypocrisy and Privacy
And yet, the stench of hypocrisy is almost overwhelming here. This is the Sun, getting outraged about a breach in privacy. The same Sun who were part of the phone hacking saga, who regularly invade the privacy of all and sundry – celebrities are just one example – often claiming it is in the public interest, but still invading privacy. The same Sun who were part of an often vicious onslaught on the Guardian in connection with the Snowden revelations. The Sun who often seem to operate as though no-one has any right to privacy – except their own journalists.
This kind of hypocrisy is matched by that of some of the hackers and champions of internet freedom who feel it’s OK to obtain and then release, gleefully, naked pictures of Jennifer Lawrence. Some seem to want their own anonymity and privacy, and think the NSA and GCHQ are nightmarish oppressors – but think that Jennifer Lawrence only has herself to blame for even having those photographs in the first place.
It’s a sadly common set of double standards – privacy doesn’t seem very important, indeed it often seems like something bad (‘privacy is for paedos’, in the words of Paul McMullan, former News of the World journalist) until it has an impact on you. The Sun’s outrage is particularly hypocritical, but at times almost all of us are guilty of it.
We all need privacy
The truth, at least as I see it, is that we all need privacy. We all need our privacy protected – and invasions of privacy should never be done lightly, without a thought for the consequences. Jennifer Lawrence – and all of us – should be able to take whatever photos we want of ourselves, however intimate. Members of the press should be able to communicate safely and securely with their sources. And we, ordinary people, should be able to go on with our ordinary lives without fear of their being exposed. Our lives aren’t any less important than those of celebrities or the press – and though the impact of privacy invasions on our ordinary lives may not be as earth shattering or newsworthy as those of celebrities, politicians and so forth, to us they matter. The revelation that NSA operatives thought looking at nude and sexual photos found by surveillance was fun, and sharing them with colleagues was just a perk of the job should repel us.
There are many other ways that invasions of our privacy have an impact upon us – things like affecting our job prospects, our insurance premiums, our credit ratings, our relationships – but there’s a bigger point here. These are our lives. This is part of our human dignity. Privacy is part of that, and it matters. We should try to remember that for other people – and celebrities are people too.
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